DOJ Makes Significant Revisions to Corporate Enforcement Policy

The U.S. Department of Justice (DOJ), through Assistant Attorney General Kenneth A. Polite Jr., announced on Jan. 17, 2023, "the first significant changes" to its Corporate Enforcement Policy (CEP) since 2017.¹ The revisions are aimed at offering companies that discover misconduct "new, significant, and concrete incentives to self-disclose" to the DOJ, cooperate fully with the department and timely remediate. In summary, the changes promote self-disclosure of wrongdoing by:

1. allowing prosecutors to decline criminal prosecution, notwithstanding the presence of aggravating factors, and
2. permitting prosecutors to seek a 50-75 percent reduction off the low end of the U.S. Sentencing Guidelines fine range, except in the case of a criminal recidivists. (Even where self-disclosure does not occur, cooperation may result in up to a 50 percent reduction.)

The changes, discussed more fully below, will apply to all corporate criminal matters handled by the DOJ's Criminal Division. They follow statements by Deputy Attorney General Lisa Monaco in September 2022 that the DOJ would offer "a combination of carrots and sticks – with a mix of incentives and deterrence" to give "general counsels and chief compliance officers the tools they need to make a business case for responsible corporate behavior."²

Policy Changes

Companies That Self-Disclose May Qualify for a Declination, Despite Aggravating Factors

The DOJ's prior policy provided that companies that voluntarily self-disclosed misconduct to the department, fully cooperated and timely and appropriately remediated the misconduct were entitled to a presumption that the DOJ would not prosecute them, "absent certain aggravating circumstances" (e.g., involvement in the misconduct by executive management, pervasiveness of the misconduct, recidivism, etc.). Where the DOJ determined that a criminal resolution was warranted, the prior policy offered up to a 50 percent reduction from the low-end of the applicable Sentencing Guidelines penalty range if the company otherwise disclosed, cooperated and remediated.

In his speech, Polite acknowledged that the prior policy may have disincentivized companies from self-disclosing if they were concerned that the presence of one or more aggravating factors could prevent them from obtaining a declination. The new policy offers companies in this position "another path." While such companies will not qualify for a presumption of a declination, the revised CEP allows prosecutors to offer a declination if a company can demonstrate that it has met three factors:

1. the company voluntarily self-disclosed the misconduct immediately upon becoming aware of the allegation of misconduct
2. the company can establish that at the time of the misconduct and disclosure, it had an effective compliance program and system of internal accounting controls that enabled the identification of the misconduct and led to the company's voluntary self-disclosure and
3. the company provided "extraordinary cooperation" with the Department's investigation and undertook "extraordinary remediation"

As Polite put it, this is a policy change aimed "squarely at companies that take compliance and good corporate citizenship seriously." It requires companies to "take extraordinary measures before, during, and after a Criminal Division investigation to earn such an outcome." While Polite did not define what would constitute "extraordinary cooperation" under the CEP, he noted that there are certain familiar concepts that will inform the DOJ's approach to assessing "extraordinary cooperation," including the immediacy, consistency, degree and impact of a company's cooperation.³

Where DOJ Determines That a Criminal Resolution is Necessary, the New Policy Allows for Greater Flexibility in Sentencing

Polite recognized that there will be instances where, notwithstanding a company's self-disclosure, cooperation, and remediation, a criminal resolution may still be warranted due to the seriousness of the offense conduct or nature of the offender. In such instances, under the revised CEP, the Criminal Division will now "accord, or recommend to a sentencing court, at least 50 percent, and up to 75 percent off of the low end of the U.S. Sentencing Guidelines fine range, except in the case of a criminal recidivist."⁴ This, Polite noted, is a "significant increase from the previous potential maximum reduction of 50 percent off the Guidelines range."

Polite noted, however, that where a company fully complies with the DOJ's policies by self-disclosing, fully cooperating, and remediating, the department "will generally not require a corporate guilty plea – including for criminal recidivists – absent multiple or particularly egregious aggravating circumstances." While relevant and important, Polite said, "criminal recidivism alone will not always mean a plea."

Even Where a Company Does Not Self-Disclose, the CEP Provides Incentives to Fully Cooperate and Timely and Appropriately Remediate

Finally, even where a company does not voluntarily self-disclose misconduct to the DOJ, the revised CEP offers incentives to cooperate and remediate. Under the new CEP, companies that fully cooperate and "timely and appropriately remediate[]" may receive a reduction of up to 50 percent from the low end of the Sentencing Guidelines fine range, even if they did not voluntarily self-disclose the misconduct to the DOJ.⁵ As Polite noted in his speech, this is twice the maximum amount of reduction available under the prior version of the CEP. Polite further noted, however, that "50 percent will not be the new norm; it will be reserved for companies that truly distinguish themselves and demonstrate extraordinary cooperation and remediation." Every company will have to "start[] at zero" and earn cooperation credit based on the parameters and factors set forth in the CEP.

Takeaways

The assistant attorney general was clear that in offering new incentives for self-disclosure and cooperation, the DOJ is seeking allies in corporate America in the fight against crime and, in particular, against individual wrongdoers. The DOJ's chief focus, he said – "our number one goal" – remained on "individual accountability" and noted that the department would "closely examin[e]" how companies "discipline bad actors and reward the good ones." Indeed, Polite closed out his remarks by noting that failure to "come forward, cooperate, and remediate" could expose companies to criminal prosecution and significant monetary penalties, citing recent high-profile examples. Thus, while the revised CEP offers several "carrots" to companies who self-disclose, cooperate, and remediate, the DOJ has also made clear that it will not shy away from using "sticks."

Notes

¹ See "Assistant Attorney General Kenneth A. Polite, Jr. Delivers Remarks on Revisions to the Criminal Division's Corporate Enforcement Policy," Jan. 17, 2023.

² See "Deputy Attorney General Lisa O. Monaco Delivers Remarks on Corporate Criminal Enforcement," Sept. 15, 2022. See also Holland & Knight's previous alert, "DOJ Expands Framework for Cracking Down on Corporate Crime," Sept. 19, 2022.

³ Analogizing to cooperation in the individual defendant context, Polite noted that in assessing the quality of a cooperator's assistance, the DOJ "value[s]" timely cooperation, consistent truth-telling, information and evidence that the department might not otherwise obtain, and "cooperation that produces results, like testifying at a trial or providing information that leads to additional convictions."

⁴ In recidivist cases, the reduction "will generally not be from the low-end of the fine range."

⁵ Where a corporate criminal defendant is a recidivist, the reduction likely will not be from the low end of the Guidelines fine range, Polite said, but from some other point in the range based on the particular facts and circumstances, as determined by the prosecutor.

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